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THE SUPREME COURT DECISION ON THE ASHES

Last Monday, the PR Supreme Court decided 8-0 the case of Peñuelas v. Ecosystems, Inc. The latter is a landfill that was using ash products in the construction it was conducting in its site, the only issue in this case. Contrary to what most believe, the Supreme Court’s decision was a very narrow one. The Court insisted that the original permit and its amendment did not specifically permit Ecosystem to use ash products in construction at its site. Moreover, the PR Supreme Court also stated, at page 23 of the opinion:

Therefore, the EQB, the entity to which it was granted, among other, the faculty to adopt norms or regulations related to the disposition of solid waste and of permits and licenses for installations for the recovery, processing and final disposition of said solid waste, has not, to this date has preempted the use of aggregate manufactured from ashes from the burning of coal as a construction material. Nothing precludes that later, the EQB exercise its power to regulate in this matter and expressly preempt it. (Translation ours)

The fact that, in the Supreme Court’s view, the EQB has not preempted the use of the ash material in construction is of such importance that at the end of the opinion, at page 29, they reiterate:

It must be reiterated, that what is decided here by this Court is not an obstacle for, if it so understands it and in compliance with the mechanisms provided by law, the EQB establish the public policy of the Commonwealth on this matter. (Translation ours)

What does this mean? Contrary what the mayor of Peñuelas and other politicians state, the disposal of ash aggregates are not prohibited in landfills. What is prohibited is its use for construction in the landfills.

The use of ash aggregates in construction is legal pursuant to the EPA’s regulations. Not to allow its use will increase the cost of AES generated electricity (16% of all electricity generated in PR and the cheapest component of our bill) and contribute to the general anti-business climate in PR. We must remember that the Board in its letter to both outgoing and incoming governors said, at page 6:

Puerto Rico is plagued with an array of regulations that slow economic growth and opportunity . . . Current regulations should be re-assessed with a simple lens: “Does the regulation enhance or hinder growth and job creation” and if the latter, “Do the benefits far outweigh the costs?” Today, we have the chance to “clean sheet” Puerto Rico’s regulatory regime and start over with a set of regulations that advance Puerto Rico’s economic and fiscal strategies. The result will be a lower cost of living for the People of Puerto Rico and a more open competitive economy where entrepreneurs are rewarded for delivering the best product or service.

PR cannot permit the balkanization of environmental regulation and must bring its regulatory scheme into the 21st Century in order to compete. Otherwise, PR will very soon be an empty shell.